Iowa Supreme Court Justice Matthew McDermott declined to comment on whether he would recuse himself from post-election litigation involving Republican candidates or party organizations, judicial branch communications director Steve Davis told Bleeding Heartland on November 2.
McDermott should decline to hear such cases, in light of his past legal work for Republican entities and U.S. Senator Joni Ernst.
McDermott had a wide-ranging private practice in Des Moines before Governor Kim Reynolds appointed him to the Iowa Supreme Court in April. His work included serving as the Republican Party of Iowa’s general counsel from 2007 to 2012. He was a volunteer member of the Polk County Republican Central Committee from 2006 to 2008.
More recently, McDermott represented Ernst in her 2018 divorce.
He was also the lead attorney for Republicans in the dispute over the 2018 election result in Iowa House district 55. GOP State Representative Michael Bergan led by nine votes in the certified count, but 29 absentee ballots from Winneshiek County, which arrived after election day, were never counted.
Although Iowa Code explicitly grants the “parties to any contested election” the right “to have the ballots opened,” and a Polk County District Court judge had affirmed the statute “allows the Plaintiff the right to have the ballots opened and considered,” McDermott worked to ensure that would never happen. He asserted during a Republican-controlled Iowa House election contest committee meeting, “there is no readily available method for anyone to determine in rational way when a mail piece was put into the system.”
In reality, the U.S. Postal Service had confirmed after examining the envelopes of 33 ballots that 29 of them had been mailed on time, the day before the 2018 election. They should have been opened and considered, even if Republican lawmakers chose not to add them to the official tally. The House eventually voted on party lines in January 2019 to dismiss Democratic candidate Kayla Koether’s contest of the result, without counting or even examining those ballots.
No Iowa judge can be forced to recuse from a case. But Iowa’s Code of Judicial Conduct (rule 51:2.11) states, “A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned […].”
Over the past several months, up to the final pre-election weekend, Republicans have filed lawsuits around the country seeking to prevent legally cast ballots from being counted. If Iowa’s Senate election or any down-ballot race is close enough to lead to litigation over counting votes, a reasonable person might question whether McDermott can adjudicate the case fairly. Not only has he advised the state GOP on many legal issues, he represented Ernst in a personal matter less than two years ago.
For years after being appointed to the Supreme Court, Justice Edward Mansfield recused himself from all matters involving his former law partners at a Des Moines firm, even though Mansfield hadn’t worked for the clients involved in those cases.
McDermott already participated in two election-related decisions last month. He was among six justices who upheld Secretary of State Paul Pate’s directive prohibiting county auditors from sending pre-filled absentee ballot request forms to voters, and part of a 4-3 majority that rejected an effort to block new restrictions on how county auditors can process absentee ballot request forms. Donald Trump’s campaign, the National Republican Senatorial Committee, the National Republican Congressional Committee, and Republican Party of Iowa intervened in the latter case, supporting the position the majority took.
Those rulings may affect the ability of hundreds or thousands of Iowa voters to participate in the November 3 election, though determining exactly how many would be impossible.
It would undermine the Iowa Supreme Court’s legitimacy for McDermott to hear a case that could lead to tossing ballots already cast for or against the senator he recently represented, especially if the Republican Party of Iowa, for which he served as general counsel, is a litigant.